Obesity remains a serious health problem and it is no secret that many people want to lose weight. Behavioral economists typically argue that “nudges” help individuals with various decisionmaking flaws to live longer, healthier, and better lives. In an article in the new issue of Regulation, Michael L. Marlow discusses how nudging by government differs from nudging by markets, and explains why market nudging is the more promising avenue for helping citizens to lose weight.

Armed with a computer model in 1935, one could probably have written the exact same story on California drought as appears today in the Washington Post some 80 years ago, prompted by the very similar outlier temperatures of 1934 and 2014.

Two long wars, chronic deficits, the financial crisis, the costly drug war, the growth of executive power under Presidents Bush and Obama, and the revelations about NSA abuses, have given rise to a growing libertarian movement in our country – with a greater focus on individual liberty and less government power. David Boaz’s newly released The Libertarian Mind is a comprehensive guide to the history, philosophy, and growth of the libertarian movement, with incisive analyses of today’s most pressing issues and policies.

Search form

The Sixth Circuit Got It Wrong

Today’s 2-1 Sixth Circuit Obamacare decision was an exercise in unwarranted judicial deference, not by the author of the majority opinion, Judge Boyce Martin, who regularly rubberstamps misuses of federal power, but by concurring Judge Jeffrey Sutton, who avoided the logical implications of this ruling and punted the main issue to the Supreme Court. Under a document establishing a government of enumerated and therefore limited powers, the burden is on that government to prove that it has the power to do something, not on the plaintiffs to disprove that power. Never has the Supreme Court ratified the federal power to force someone to buy a product in the marketplace under the guise of regulating commerce. Indeed, never, not even during the height of the New Deal, had Congress asserted such a power—until the health insurance mandate.

To allow such a power now is to read out of the Constitution any structural limitations on federal power, which, as Justice Kennedy reminded us for a unanimous Supreme Court two weeks ago in Bond v. United States, are the Constitution’s first and greatest protectors of liberty. While a progressive like Judge Martin could be expected to accept any exercise of federal power, it is shocking that an avowed constitutionalist like Judge Sutton requires Congress to show only a rational basis behind what it does—a “reasonable fit” between the means it chooses and the ends of regulating interstate commerce—to survive constitutional scrutiny. Under such logic, Congress can do anything it wants so far as it is essential to a larger regulatory scheme. That cannot be the law.

As Chief Justice Marshall wrote nearly two centuries ago, any legislation Congress enacts under its power to make laws that are necessary and proper for executing an enumerated power must “consist with the letter and spirit of the [C]onstitution.” A constitutional interpretation resulting in Congress being the judge of its own powers, that forces people to engage in commerce rather than regulating existing commerce, fails that test.

Judge Sutton does well to describe the Supreme Court’s inflation of federal authority over the last 75 years and is to be commended for demanding that the Court “either should stop saying that a meaningful limit on Congress’s commerce power exists or prove that it is so.” But he has it backwards in saying that it’s not the role of the lower courts to invalidate legislation that goes beyond even the modern warped doctrine; the decision on whether to expand existing Supreme Court precedent is precisely that ultimate court’s alone.

If the Court joins the Sixth Circuit and goes there, it would mean putting the final nail in federalism’s coffin. But I doubt that proposition will find five votes—and before then we may even see decisions to the contrary from one or more circuit courts.